True or False: Don’t Move out until AFTER the Divorce

True or False: Don’t Move Out Until AFTER the Divorce by Joshua Katz

{3:01 minutes to read} Call a truce or move to the couch in the den.

Do whatever you have to do to make it work, but do not move out of the house until you speak with a lawyer. Vacating the marital home and leaving the children with your spouse could adversely affect your parenting rights.

In determining custody, the number one factor that the courts look at is stability. If you move out of the house without a parenting plan in place, the court may decide to “maintain the status quo,” i.e., leave everything as is.

Abandonment versus extrication: What if I have to move?

If there’s a danger of domestic violence, then I would not hesitate to advise a client to move out immediately. If there may be a physical altercation, then get out! It’s better than getting arrested. If you move out and do not ask the court for visitation, it could be deemed as abandonment; however, if you move out for the sake of the children, to avoid domestic violence, that is extrication.

If possible, have a written parenting plan and a temporary basic child support order in place before you leave.

Unless you contact a lawyer and have a written agreement, you could prejudice yourself and jeopardize your parental rights.

Contact your children daily and insist upon visitation.

Even if you temporarily move to a room where kids cannot stay overnight, you still have the right to visit them during the daytime. Insist upon those rights! Do not sit by and wait until your situation improves and you can have overnight visits. Stay in touch and begin enforcing your parental rights immediately.

Talk to your attorney before you move.

When there is no custody order in place, both parents have equal rights to the children. Legally, nothing would preclude either parent from leaving with the children. Legally, you could create a tug-of-war: one parent moves out and takes the children to a new place, then the other parent picks them up from school and takes them back home again. Do not play tug-of-war!

When you file for divorce, you have the right to petition the court for exclusive use and occupancy of the marital residence. This would vacate the other spouse from the home, but there must be an imminent risk or danger to you or the children before the court would remove a parent from his or her home at the outset of a divorce action.

The court has a very high standard to meet before evicting a parent. It is a difficult hurdle. If you attempt it and do not succeed, it could negatively affect the rest of your divorce/custody proceedings.

In every divorce, there is some level of acrimony. Your lawyer will know whether that strife rises to an actionable level, and he will recommend the best course of action based upon your unique circumstances. Call our office for a consultation to discuss your rights, before your next move.


Plaine & Katz, LLP
80-02 Kew Gardens Rd.
Suite # 1050
Kew Gardens, NY 11415

Leave a Reply

Your email address will not be published. Required fields are marked *